Nawabzada Syed Moinuddeen Mirza vs Mohamad Amin and Others

Jwala Prasad, J.—(His Lordship stated the facts and continued). The decree holder purchaser has come up to this Court in revision, and contends that the order of the Subordinate Judge setting aside the sale was without jurisdiction, inasmuch as the application to set aside the sale under Order XXL, Rule 90 was filed beyond time, and the learned Subordinate Judge did not hold that the judgment-debtor was kept out of the knowledge, of the execution proceedings by reason of fraud having been committed by the decree-holder. In support of this contention the learned Advocate on behalf of the decree-holder purchaser relies on the finding of the Munsif that no fraud was established in the case and that the judgment-debtor was not entitled to the protection of Section 18 of the Limitation Act.

Mr. Hasan Jan on behalf of the opposite party says that the finding of the Court below to the effect that service of notice has not been proved is sufficient to hold that the executing Court had no jurisdiction to proceed with the execution and sale and consequently the sale must be set aside as being without jurisdiction, Both parties admit that the findings of fact arrived at by the Court below are not open to challenge in revision.

The only question, therefore, for consideration is whether the finding of the Court below that service of notice under O. XXI, r. 22 has not been proved is sufficient to hold that the sale was without jurisdiction. Now, it seems to have been settled by authorities that notice under Order XXI, Rule 22 is essential for starting an execution of a decree. That rule says:

(1) Where an application for execution is made-

(a) more than one year after the date of the decree, or

(b) against the legal representative of a party to the decree,

the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.

Rule 23 says:

(1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

Therefore, the Court has no jurisdiction to order execution of a decree unless and until notice under Order XXI, Rule 22 has been issued and served, and the reason for this stringent rule appears to be, as stated in the preamble of the rule, the lapse of time and when the execution is sought to be not against the judgment-debtor named in the decree but against his legal representative. By notice under Order XXI, Rule 22 the decree is confirmed in a manner so as to enable the Court to execute it. In this sense it has been said that want of issue and service of notice under the aforesaid rule goss to the root of jurisdiction of the Court executing the decree. All the cases on the point, notably those of their Lordships of the Judicial Committee, have been referred to in the case of Gurdas Biswas v. Thakamani Dasi 64 Ind. Cas. 476 : 25 C.W.N. 972 as well as in the case of Babu Das Narayan Singh v. Muhammad Yusuf 61 Ind. Cas. 823 : 6 P.L.J. 319 : (1921) Pat. 181 : 3 U.P.L.R. (Pat.) 33 : 2 P.L.T. 401. As pointed out in the last cited case, a mere irregularity in the service of notice will not render the execution proceedings or the sale held the reunder null and void and that in order to affect the jurisdiction of the Court to execute the decree it must be shown that the notice under the aforesaid rule was either not issued or not served. An irregularity in the service of notice under Order XXI, Rule 22 as well as an irregularity in the preparation and service of attachment and sale proclamation might amount to material irregularity in publishing and conducting the sale. But that in itself would not nullify the sale. It will be necessary for one who attacks the sale and seeks to have it set aside to show that there was material injury or loss caused to the judgment-debtor by reason of such an irregularity in the execution proceedings; but where notice under Order XXI, Rule 22 has not been issued or served, the sale becomes null and void, and it is not required to be set aside. This is the distinction drawn by their Lordships of the Judicial Committee in the case of Raghuriath Das v. Sunder Das Khetri 24 Ind. Cas. 304 : 42 C. 72 : 27 M.L.J. 150 : 18 C.W.N. 1058 : 16 B. L.R. 814 : 13 A.L.J. 154 : 41 I.A. 251 : 1 L.W. 567 : 16 M.L.T. 353 : 20 C.L.J. 555 : (1914) M.W.N. 147 (P.C.) read with the case of Malkarjun v. Narhari 27 I.A. 216 : 25 B. 337 : 10 M.L.J. 368 : 5 C.W.N. 10 : 2 B. L.R. 927 : 7 S. P.C.J. 739 (P.C.). In the one case it is said that the sale is voidable and is required to be set aside by the Court before it is rendered ineffective and inoperative. In the other case the sale is void ab initio, inasmuch as the notice, which is requisite as the very foundation of the jurisdiction of the Court executing the decree, has not at all been issued or served. In the former case, it is necessary to prove fraud as having caused ignorance of the execution to the judgment-debtor in order that he might take advantage of the provisions of Section 18 of the Limitation Act. In the latter case the judgment debtor need not prove fraud at all, inasmuch as the sale is null and void and as having been held without jurisdiction. In the case of Gurdas Biswas v. Thakamani Dasi 64 Ind. Cas. 476 : 25 C.W.N. 972 referred to above, this distinction was clearly brought out. There the subordinate Court had held that the applicant to have the sale get aside failed to prove that he was kept out of the knowledge of the execution by reason of fraud perpetuated by the decree-holder, but the judgment-debtor was able to prove that no notice under Order XXI, Rule 22 was served upon him. It was in these circumstances held that the sale was null and void in spite of his failure to prove that he was kept out of the knowledge of the execution proceedings by reason of the fraud practised by the decree-holder. To the contention urged on the ground of limitation by reason of no fraud having been established their Lordships observed "that no doubt would be so, where, as in Malkarjun''s case 27 I.A. 216 : 25 B. 337 : 10 M.L.J. 368 : 5 C.W.N. 10 : 2 B. L.R. 927 : 7 S. P.C.J. 739 (P.C.), there is ''a sale valid until set aside.'' It was accordingly held in that case: ''But if the sale is a reality at all, it is a reality defeasible only in the way pointed out by law; and it seems to their Lordships that the case must fall either within Section 311 of the Code or within Article 12(a) of the Limitation Act of 1877, or within both; any way, there exists a bar by one year''s delay.'' And as stated above, the Judicial Committee in the case of Raghunath Das v. Sunder Das Khetri 24 Ind. Cas. 304 : 42 C. 72 : 27 M.L.J. 150 : 18 C.W.N. 1058 : 16 B. L.R. 814 : 13 A.L.J. 154 : 41 I.A. 251 : 1 L.W. 567 : 16 M.L.T. 353 : 20 C.L.J. 555 : (1914) M.W.N. 147 (P.C.) in. distinguishing the case of Malkarjun v. Narhari 27 I.A. 216 : 25 B. 337 : 10 M.L.J. 368 : 5 C.W.N. 10 : 2 B. L.R. 927 : 7 S. P.C.J. 739 (P.C.) observed: ''There being jurisdiction to sell, and the purchasers having no notice of any irregularity, the sale held good unless or until it were set aside by appropriate proceedings for the purpose,'' But those considerations cannot apply where the proceedings are without jurisdiction and the sale is a nullity." After this observation the sale was set aside.

This being the law on the subject, the question is whether the finding of the Court below in the present case as regards notice under Order XXI, Rule 22 is a sufficient finding in order to hold that the execution of the decree and the consequent sale were without jurisdiction and can be set aside without any finding that the judgment-debtor was kept out of the knowledge of the execution and the sale by reason of fraud practised upon him by the decree-holder. In the present case the Court records its finding in the following words:

Witness No. 1 for the opposite party was examined to prove the notice under Order XXI, Rule 22. He is the Court peon and does not know the applicant. He also does not know the identifier Tuna Khan who was pointed out to him during his examination. But neither the identifier Tuna Khan nor the attesting witness Mohammad Amin and Wahid, Ali have been examined to prove the service of notice. The peon says in his cross-examination that he has no independent recollection about the service of notice. Hence the service of this notice has not been sufficiently proved and if the service of notice is not proved then in view of the established law the Court has no jurisdiction to proceed with the execution and the sale held in pursuation of the same is void for want of jurisdiction. Hence this very fact is sufficient to entitle the appellant to succeed in this case.

Now, the Court has held that the notice was not sufficiently proved, because the identifier and the attesting witness in the service return of the peon were not examined and the peon was, not corroborated by their testimony, he having no personal knowledge. The order of the Court as to the notice under Order XXI, Rule 22 is as follows: "Return submitted and served." The report of the peon was that the judgment-debtor refused to take the notice and it was, therefore, affixed on the outer door of his house. Upon the evidence in the case the lower Appellate Court has held that the notice under Order XXI, Rule 22 was not served. It is not necessary to pursue the matter any further, for the parties have settled their dispute.

By consent it is ordered that the judgment-debtors will pay Rs. 400 to the decree-holder purchaser on or before the 21st of July, 1920, in respect of the amount due, under the decree, the costs of execution, the arrears of rent up to the year 1336 and damages. Upon such payment being made the sale will stand set aside. If the said amount is not paid or is not deposited in the Court of the Munsif of Kishunganj on or before the aforesaid date, the sale will stand confirmed. Each party will bear its own costs in the litigation.